GPSolo Magazine - March 2005

Trial PracticeClient Perjury: When Do You Know The Defendant Is Lying?

By J. Vincent Aprile II

It is imperative that defense counsel understand when and how a lawyer has sufficient knowledge of the client’s perjury to take action to prevent or remedy the defendant’s efforts to inject false evidence into the proceedings. Often, criminal defense lawyers are surprised to learn that the specific facts in their individual cases do not permit counsel to conclude the client’s purported testimony will be perjurious. In that situation, there is no duty to take actions to prevent fraud on the tribunal, despite counsel’s suspicions about the client’s untruthfulness.

Where the veracity or falsity of the defendant’s testimony is conjectural, the ethical dilemma does not arise. A client’s unambiguous, unretracted statement that he or she intends to lie under oath undoubtedly satisfies the threshold requirement, absent extraordinary circumstances. Even in such a cut-and-dried situation, the lawyer’s intimate knowledge of the client’s idiosyncrasies and foibles could produce a scenario in which the lawyer realizes or should realize that the defendant’s purported testimony is not false, rather the claim that he or she intends to testify falsely is the lie. Similarly, a client who has been found competent to stand trial may, in counsel’s judgment, be so mentally ill that in the client’s delusional system the truth is a “lie” and a lie is the “truth.” For such a defendant, counsel should discount the client’s labeling of the intended testimony as a lie. Thus, even an attempt to generate a bright line rule when the client “admits” he or she is going to lie on the stand fails as an immutable standard.

For this reason, it may be more appropriate to focus on what information is never sufficient to meet the threshold requirement necessary to conclude the client has committed or will commit perjury at trial.

When the client’s story changes. Some defense lawyers view a client’s change in the account of what happened, particularly when made in the course of confidential attorney-client communications, as a valid basis for concluding that the client intends to commit perjury. That type of analysis overlooks the reality of rapport building in the lawyer-client relationship. Perhaps the client assumed because he or she shot the victim it was “murder,” even though the shooting was self-defense and not a criminal offense. Thus, the accused’s change in versions of what happened may be the result of initial ignorance, lack of sophistication, or any number of innocent mistakes. Inconsistent statements by the defendant alone are insufficient to establish that the defendant’s testimony would have been false.

When a defense attorney has become familiar with the totality of the evidence in a case, counsel may begin to suspect that the client’s account of his or her involvement in the charged offenses is untrue in light of all the conflicting evidence. Although that type of suspicion may be of great assistance as counsel explains to the client the problems presented by the client taking the stand to tell that story, those same suspicions are insufficient to justify the lawyer concluding that the client intends to commit perjury. It is crucial in this type of situation that the lawyer knows for certain that actual perjury is involved. Mere suspicion is not enough.

Inconsistencies in the evidence or in the defendant’s version of events are also not enough to trigger counsel’s duty to act to prevent client perjury, even though the inconsistencies, considered in light of the prosecution’s proof, raise concerns in counsel’s mind that the defendant is equivocating and is not an honest person. Even the presence of compelling physical and forensic evidence implicating the defendant would not be sufficient to trigger the lawyer’s duty to act to prevent client perjury.

Once defense counsel begins to review the incriminating evidence to determine whether the client’s proposed testimony is true, counsel abandons the role of an advocate to become the judge and jury on the sole issue of whether the client is lying.

Unclear standards. Courts and commentators have frequently attempted to formulate generic standards to tell lawyers when the problem of client perjury has been exposed. Most of these standards suffer from the lawyer’s ability to manipulate the key words of the standard to allow counsel, depending on subjective factors such as personal perspective and philosophy, either to view the client as a liar or an honest witness.

Good faith. “The firm basis in fact” standard mandates that a lawyer act in good faith based on objective circumstances firmly rooted in fact. This standard provides little or no assistance to counsel who is concerned that a client’s testimony may amount to perjury. Counsel who erroneously takes pride in never allowing a client to plead guilty once the client admits in confidence the commission of the charged offense, believes he or she is acting “in good faith.” The “good faith” shibboleth is particularly conducive to misuse in this context because it is equally compatible with ensuring the defendant’s right to testify and protecting the integrity of the judicial proceedings.

Objective circumstances rooted in fact. Equally unsatisfactory is the guidance provided by the requirement that the lawyer’s action be “based on objective circumstances firmly rooted in fact.” The language of this standard would appear to allow counsel to rely on the state’s forensic evidence to reject the defendant’s proposed testimony as perjury. Counsel could construe such often unreliable but admissible evidence as “objective circumstances firmly rooted in fact.” Unfortunately, the language of the standard itself does not provide guidance as to which “objective circumstances firmly rooted in fact” are exempted or usable.

When a standard directs a lawyer to “act in good faith based on objective circumstances firmly rooted in fact” to determine whether the client is going to commit perjury, that rubric requires counsel to be proactive and constantly evaluate any and all objective circumstances that could undermine the truthfulness of the client’s intended testimony. Defense lawyers should not be required to serve as the first-line, proactive censors of the client’s purported false testimony. Instead, defense counsel should function only as a reactive censor.

Wisconsin decision provides guidance. Recently, the Wisconsin Supreme Court addressed under what circumstances defense attorneys have knowledge of prospective client perjury sufficient to trigger a counsel’s duty to act to prevent client perjury. It adopted the standard that, “absent the most extra-ordinary circumstances, criminal defense counsel, as a matter of law, cannot know that a client is going to testify falsely absent the client’s admission of the intent to do so.” ( State v. McDowell, 681 N.W.2d 500, 510 (Wis. 2004.)) This standard is designed to exclude a multitude of factual situations in which a defense attorney might conclude the facts known to counsel required affirmative action to preclude the client from testifying falsely.

Equally important, this standard is reactive, not proactive, in nature. The lawyer is not required to monitor constantly all the “objective circumstances firmly rooted in fact” that could undermine the credibility of the client’s proposed testimony. Instead, absent the most extraordinary circumstances, the lawyer has no knowledge of the client’s planned perjury unless the client specifically informs counsel of such an intent. By requiring the client’s admission to counsel of an intent to lie on the stand as the trigger for the defense lawyer’s need to confront the client perjury issue, this standard preserves the attorney-client relationship, the role of defense counsel as zealous advocate, and the integrity of the judicial proceedings.

J. Vincent Aprile II is a lawyer with Lynch, Cox, Gilman & Mahan P.S.C. in Louisville, Kentucky. He can be reached at vaprile@lcgandm.com.

For More Information About the Criminal Justice Section

- This article is an abridged and edited version of one that originally appeared on page 14 of Criminal Justice, Fall 2004 (19:3).

- For more information or to obtain a copy of the periodical in which the full article appears, please call the ABA Service Center at 800/285-2221.